RONAYNE JOSEPH DEMPSEY v R [2023] NZCA 461

RONAYNE JOSEPH DEMPSEY v R [2023] NZCA 461 [21 September 2023]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA441/2022[2023] NZCA 461BETWEEN RONAYNE JOSEPH DEMPSEYApplicantAND THE KINGRespondentHearing: 28 August 2023Court: Miller, Ellis and van Bohemen JJCounsel: M Zintl for ApplicantM J Lillico for RespondentJudgment: 21 September 2023 at 10.30 amJUDGMENT OF THE COURTThe application for an extension of time to appeal is declined.____________________________________________________________________REASONS OF THE COURT(Given by Miller J)[1] Mr Dempsey seeks an extension of time to appeal against the minimum periodof 12 years' imprisonment imposed in his sentence of life imprisonment for the murderof Bruce Mortimer on 4 July 2015.1 He says that through counsel error the trial Judge,Clifford J, was not made aware of extensive personal mitigating factors which wouldhave reduced the minimum period of imprisonment (MPI) by at least 12 to 18 months.1 R v Dempsey [2016] NZHC 3056 at [49] [sentencing notes].[2] The sentence was passed on 13 December 2016 and the appeal was filed on26 August 2022, so Mr Dempsey is out of time by five years, six months and 26 days.His explanation for delay is that trial counsel, John Sandston, did not advise him abouta possible appeal against sentence or advise him of time limits on an appeal. In supportof his application for extension of time he has tendered a report prepared under s 27of the Sentencing Act 2002 and he has provided copies of specialist reports preparedduring his childhood and adolescence.The offending[3] Mr Dempsey and Mr Mortimer both lived in a residential complex,Franklyn Village, in Nelson. Each resident rented a separate room.[4] The background to the attack on Mr Mortimer was a dispute over morphinepills which he accused Mr Dempsey of stealing. Mr Dempsey claimed that in returnfor him helping to recover the pills Mr Mortimer agreed to speak to an acquaintancewith whom Mr Dempsey was having difficulties. Mr Dempsey thought thatMr Mortimer had not kept his side of the bargain. Clifford J recounted whatMr Dempsey did about it:[18] In the days leading up to Friday 3 July two people had heardMr Dempsey say he was going to stab or smash Mr Mortimer in relation tothe morphine pills.[19] Several of your acquaintances that evening described the events. Twodifferent groups of people had been partying in Franklyn Village. They cametogether, they including you, in room 214, along the corridor from your andMr Mortimer's rooms. A number of those people said they heard you sayingthe guy down the hall had $200, that you wanted that money to buy alcoholand that you were going to jump him for it or stab him to get the money.[20] Eventually, you went to Mr Mortimer's room. Mr Brunsell followedyou. You banged and knocked loudly on the door. Witnesses heard you sayingthat Mr Mortimer had ripped you off. Mr Mortimer opened his door and youpushed your way in. A fight started there. It continued in the hallway. It wasin the hallway that you punched and kicked Mr Mortimer to the body and thehead causing the fatal injuries. That violence stopped when Mr Burgess, aneighbour, stood up to protect Mr Mortimer from you.[5] Mr Mortimer suffered a brain injury from which he succumbed in hospital.Mr Dempsey initially tried to downplay the extent of his violence, but at trial heaccepted that he was guilty of manslaughter.2 The jury found him guilty of murder.The sentencing[6] The central issue at sentencing was whether s 104 of the Sentencing Act wasengaged, meaning that Mr Dempsey must be sentenced to an MPI of 17 years or moreunless that was manifestly unjust. The Crown invoked s 104, contending that themurder involved entry into a dwelling place and was committed in the course ofanother serious offence, an attempted aggravated robbery.[7] Mr Sandston's sentencing submissions naturally focused on s 104. He wasaware of Mr Dempsey's background of childhood abuse, placements at Child Youthand Family homes, and mental health and intellectual difficulties, and he had seenreports from or prepared for the (then) Child Youth and Family Services andOranga Tamariki (we will call this collectively the CYFS material), but he did notdiscuss that material in his written submissions and, understandably, could not nowsay in evidence before us whether he had mentioned it in his oral submissions.[8] After recounting the facts, the Judge drew attention to the pre-sentence report,which noted Mr Dempsey's long history of unemployment, alcohol and drug abuse,and suicide attempts.3 He noted well-established difficulties with anger management.4He did not refer to any of the CYFS material about Mr Dempsey's background.[9] The Judge accepted that Mr Dempsey had pushed his way into Mr Mortimer'sroom, which was a private space, and that the assault began there, but he was notpersuaded that the room was a dwelling place, as that term is used in s 104.5He accepted that there was an attempt to rob, which is a serious offence, but thatoffence was not completed.6 Concluding that the law was a little unclear, the Judge2 At [16].3 At [24]–[25].4 At [26].5 At [35].6 At [38]–[40].decided that s 104 did not apply. He added that had he decided otherwise he wouldhave found it manifestly unjust to impose a 17-year MPI.7[10] The Judge's reasons for adopting a 12-year MPI are very brief. He concludedthat this was not the most serious of murders, pointing to the absence of aggravatingfeatures, such as extended or repeated violence, which often characterise the mostserious cases.8 He accepted that there was a degree of callousness and brutality.9He concluded that a 12-year MPI was needed to meet the sentencing purposes ofaccountability, deterrence and denunciation.10 It will be seen that his reasons relatedto sentencing purposes and features of the offending, not personal mitigating factors.The appeal[11] Mr Dempsey and Mr Sandston filed affidavits and Mr Sandston wascross-examined before us. Mr Zintl, for Mr Dempsey, tendered a report under s 27 ofthe Sentencing Act and the CYFS material, and contended that had the information inthese documents been before the Judge the MPI would have been between 10 yearsand six months to 11 years imprisonment. Counsel acknowledged that the delay inappealing is very long but he contended that Mr Dempsey was not given adequateadvice about appealing. Mr Dempsey himself deposed that he was not given anyadvice of that kind. Mr Zintl acknowledged that the societal interest in finality mustbe balanced against the interests of Mr Dempsey, but he contended that the merits ofthe appeal justify leave in this case.[12] For the Crown, Mr Lillico contended that the merits are a relevant but notnecessarily decisive consideration. The explanation for the delay is that Mr Dempseyhad been looking at a 17-year MPI and was happy with his sentence; indeed, heacknowledges that. The argument that a s 27 report ought to have been before theJudge is "anachronistic". Mr Lillico referred us to a 2012 article byJudge Stephen O'Driscoll in which the Judge described s 27 as under-utilised11 andsubmitted that it remained "somewhat dormant" until the 2018 High Court judgment7 At [47].8 At [47].9 At [45].10 At [43] and [46].11 Stephen O'Driscoll "A powerful mitigating tool?" (2012) NZLJ 358 at 358.in Solicitor-General v Heta.12 A survey of High Court and Court of Appeal sentencingdecisions from 2016 turns up no cases in which s 27 was cited. Counsel submittedthat a subsequent change of practice with respect to s 27, in the form of thenow-familiar written reports, cannot outweigh the interest in finality in this case.The Mortimer family (some of whose representative appeared at the hearing beforeus) were entitled to believe the case was at an end. Nor does the s 27 report make adifference in this case; it does not sit well with the premeditated nature of theoffending. The Judge's approach was lenient, having regard to the facts that theoffending began in Mr Mortimer's room and was carried out in the context of anexpressed intention to rob.Delay is inadequately explained[13] Someone who has waited more than five years to bring an appeal should offera very good explanation for their delay.13 The onus is on that person to displace thepresumption of finality that underpins the statutory time limit for bringing an appealagainst conviction or sentence.14 The longer the delay the more likely it is that thepublic interest, and that of other participants, in finality will outweigh the merits of theappeal.[14] The evidence about why Mr Dempsey waited so long is unsatisfactory.[15] We accept that to some extent the delay is explained by Mr Sandston's advice.We reject Mr Dempsey's evidence that nothing was said about a right of appeal.Rather, counsel's advice, recorded in a letter after sentencing, was that there were nogrounds for an appeal. He took the view that Mr Dempsey had done well to escape a17-year MPI. We infer that Mr Dempsey accepted that advice initially.Like Mr Sandston, he was relieved by the sentencing outcome.[16] But sometime between December 2016 and August 2022 Mr Dempseychanged his mind. He deposes that it was only after getting in touch with Mr Zintl, towhom he was referred by the Legal Services Agency, that he understood he could12 Solicitor-General v Heta [2018] NZHC 2453, [2019] 2 NZLR 241.13` Lee v R [2006] 3 NZLR 42 (CA) at [115].14 R v Knight [1998] 1 NZLR 583 (CA) at 588–589.appeal against his sentence. He does not explain why or when he approached theLegal Services Agency. All that can be said is that at some point during the period ofmore than five years he decided to inquire into whether he had grounds for an appeal.Why he did that we do not know.The personal mitigating information is not new[17] It is plausible that, as the Crown suggests, Mr Dempsey wanted to takeadvantage of a s 27 report, a relatively recent development in sentencing practice.If so, that consideration would count against an extension of time for reasonsexplained in Cheung v R.15[18] However, we do not think that is what is really happening in this case.[19] The writer of the s 27 report, Taria Mason, is a very experienced social worker.As is now routine with such reports, she does not speak from personal knowledge ofMr Dempsey or his family circumstances or his particular community. Rather, she haswritten a report that collates third-party information (although she does go on to offeran opinion about causal connection between background and offending, to which wereturn below). The information is drawn from the CYFS material. It was available atsentencing and could have been tendered through counsel. There was no need toinvoke s 27. We observe that Clifford J referred to similar material when sentencinga co-offender (for a lesser offence) at the same time.16 In Mr Dempsey's case, thepre-sentence report referred to a propensity for violence, impulsivity and poordecision-making skills but did not explain how he came to have these characteristics.[20] As noted earlier, Mr Sandston had read at least some of the CYFS material.While he cannot recall whether he addressed it orally, the absence of any reference toit in his written submissions and the Judge's sentencing notes suggest he did not doso. We think counsel was right to focus on the question whether the offending engageds 104 of the Sentencing Act. The risk of a 17-year MPI was very real. However, hedoes not appear to have focused on the length of the MPI should the Judge find that15 Cheung v R [2021] NZCA 175, [2021] 3 NZLR 259 at [26]–[37] and [50]–[53].16 Sentencing notes, above n 1, at [70]–[73].s 104 was not engaged or, if it was, that a 17-year MPI would be manifestly unjust.We accept that this was an omission.The CYFS material[21] The CYFS material points to a background of abuse and deprivationthroughout Mr Dempsey's childhood and adolescence. He was removed from the careof his parents at the age of five, following findings of abuse and neglect, and placedin a succession of foster homes, where he suffered further abuse. Specialistassessments as a child found him developmentally delayed. He displayed features ofattention deficit disorder. A psychological report prepared at the age of six opined thathe had had very extensive exposure to physical violence and aggressive verbalisationin the family home and this was reflected in his own aggressive behaviour.Would the CYFS material have reduced the MPI materially?[22] We accept Mr Lillico's submission that the aggravating factors of the offendingwhich put Mr Dempsey at risk of a 17-year MPI were present to a significant degreeand had to be reflected in the sentence. Counsel drew attention to R v Pahau, in whichs 104(1)(c) was applied where the victim was stabbed as he was followed onto thedeck of his home and attempted to enter it through the window.17 Dismissing theappeal, this Court held it was sufficient that the victim, while not "in" the house, wastrying to avail himself of the sanctuary that it offered.18 In this case the attack beganin Mr Mortimer's room, which was his bedroom and place of sanctuary. And inpreceding days two people had heard Mr Dempsey say he was going to stab or smashMr Mortimer in relation to the morphine pills. These features of the offending indicatethat an MPI significantly in excess of the statutory minimum of 10 years was requiredin this case to meet the statutory purposes of sections 103(2) and 104 of the SentencingAct.19[23] As noted, Ms Mason has expressed the opinion that Mr Dempsey's backgroundcontributed to the offence. In her view it meant he was unable to deal with the17 R v Pahau HC New Plymouth CRI-2008-043-4555, 16 August 2010 at [31].18 Pahau v R [2011] NZCA 147 at [74]. Leave to appeal to the Supreme Court on the point wasdeclined: Pahau v R [2011] NZSC 88 at [4].19 See further Frost v R [2023] NZCA 294 at [41].breakdown of his relationship with the mother of his son, whom she describes as theone love of his life besides his children. She asserts that he turned to alcohol to silencethe pain and loss but his anger was bubbling under the surface and exploded the nightof the offending.[24] This opinion presumably reflects Mr Dempsey's instructions to Ms Mason, butit does not accord with the facts on which he was sentenced. The offending was theresult of a premeditated plan to rob Mr Mortimer of money. We accept that hispersonal characteristics and background left him with a propensity for violence andpoor decision-making skills. However, the causal connection to this particularoffending is not strong.[25] For these reasons we are not persuaded that the CYFS material would haveaffected the MPI, still less that it would make the sentence manifestly excessive.Disposition[26] We have accepted that the CYFS material ought to have been before thesentencing Judge, but not that it would have made a difference to the 12-year MPI.We have also found that the very long delay in bringing the appeal has not beensatisfactorily explained. The interests of justice do not require an extension of time.[27] The application for an extension of time to appeal is declined.Solicitors:Crown Law Office, Wellington for Respondent